Carter v. Carter

DOOLING, J. pro tem.

On May 16, 1941, respondent herein caused a writ of execution to be levied upon a bank account standing in the names of appellants, who are husband and wife. The writ of execution was issued upon a judgment against appellant husband. Appellant husband filed an affidavit claiming the sum of $251.87 to be exempt from execution under section 690.11 of the Code of Civil Procedure. Appellant wife filed a third party claim alleging title to one-half of the amount in the bank account. The two matters were heard together and from an order denying the claim of exemption and adjudging title to the entire bank account to be in appellant husband this appeal was taken.

The exemption granted by section 690.11 of the Code of Civil Procedure is limited to “the earnings of the defendant or judgment debtor received for his personal services rendered at any time within thirty days next preceding the levy of attachment or execution. ’ ’ The burden of proof is on the judgment debtor to establish his right to the exemption.

(Bertozzi

v.

Swisher,

27 Cal.App.2d 739 [81 P.2d 1016];

Petrich

v.

Francis,

83 Cal.App. 72 [256 P. 444];

Murphy

v.

Harris,

77 Cal. 194 [19 P. 377].) It was therefore incumbent upon appellant to prove by a preponderance of evidence that the amount claimed to be exempt from execution was “received for his services rendered . .. within thirty days next preceding the levy. ’

’

Appellant husband failed to meet this burden.

He testified that he sells drapery and upholstery goods on commission in San Francisco for two New York firms. The practice is for him to forward cheeks to these firms for goods sold and they in turn mail checks to him for the commissions earned. He did not recall what items made up the amount of $251.87 claimed to be exempt. He merely added up all the deposits made in his account within thirty days of the levy. He keeps no books and had no record of his earnings except his deposits and an informal record that he keeps to enable him to make an income tax return. It is obvious from this summary of his testimony that he failed to prove that any part of the sum as to which he claimed an exemption was for “serv